Summary Of Dispute Between 9/11 Commission And White House Over Access To Pdbs

CHRONOLOGY ON PDB PROPOSAL 1. Document Request to CIA (July 3,2003): "Articles from the President's Daily Brief (PDB) relating to Usama bin Laden (UBL), al Qaida, or Afghanistan (including the Taliban and/or the Northern Alliance), as well as articles relating to counterterrorism issues in Pakistan, Saudi Arabia, Germany, Yemen, and/or Sudan from January 1, 1998 to September 20, 2001." 2. Initial Offer by White House (September 2003) : General briefing for all Commissioners on numbers of PDBs in various categories, followed by more specific briefings for Chair and Vice Chair and designated staff, with possible access for same group to one or more PDBs. 3. After negotiations in late September, White House agrees to more "substantive:" general briefing for all Commissioners, leaving open what further steps will follow. 4. Briefing for all Commissioners and selected staff takes place on October 14, 2003. 5. Further offer by Gonzales to Tom (October 25, 2003): Access for Chair and Vice Chair and two staff to approximately 22 PDBs relating to] | I [(subject to further discussion with Tom and Lee). Notes can be taken, and full Commission can be briefed after clearance by White House. No access to additional 340 PDBs responsive to our request. 6. Revised offer by Gonzales to Tom and Lee (October 28): Same as above, plus access by one staff member to 340 to determine whether there were omissions in constituting the core group of approximately 22 and whether there are additional highly relevant documents that should be added t0 the core group. 7. Commission meeting (November 1,2003): Commission rejects Gonzales offer; directs Chair and Vice Chair to present counterproposal seeking access to the core group for all Commissioners and access by Chair/Vice Chair and two staff members to additional 340. Tom and Lee present counterproposal to Gonzales. 8. Final offer by Gonzales (November 5, 2003): Same as October 28 offer, except that review of 340 may be conducted by cWr or Vice Chair or staff member chosen by Commission, an^ Gonzales apparently accepts Tom's characterization of review of 340 as providing opportunity for Commission to seek to add to core group any additional PDBs that are important to our carrying out our statutory mission.

9/11 Classified Information

THE PROPOSAL A core group of 22 PDB items can be examined by the Chair, Vice Chair, and two members of the Commission staff. They can take notes. The notes will be held for the Commission by the White House. The notes or other summaries of the information in these items can be shared with other commissioners and staff. Before sharing such notes/summaries outside the limited group, the White House would have the right to review the notes/summaries in order to limit circulation of especially sensitive details about the intelligence. If this information is used in the Commission's report, the White House will resist citations that specifically identify the information as coming from the President's Daily Brief. A Commission representative (Chair, Vice Chair, or staff designee - staff designee would be Kojm) can examine the remaining 340 PDB items produced in response to the Commission request. That representative can identify any other PDB items that the Commission must see in order to do its job under the statute. The White House would then move those items to the core group for further examination and effective sharing of the necessary information with the rest of the Commission. If, however, the White House refuses to add such items to the core group, the Commission could consider whether to take further action, including a subpoena to obtain adequate access to the specific PDB items at issue. OPTIONS 1. Accept proposal Pro: Gets issue behind us without complaints about which commissioners or staff have access to what. Recognizes that Commission as an institution will have access to all the PDBs it requested, that Chair/Vice Chair and 2 staff will be able to take notes on core group of PDBs and pass information to their colleagues, and that Commission will be able to seek addition of other significant PDB items from the 340 to this core group. Con: Does not provide as much direct access to core group (for all Commissioners or an expanded subgroup) or to 340 that we sought. la. Accept proposal with complaints. Pro: Would make clear our disagreement with the White House proposal while still taking advantage of it. Con: Would require public, detailed discussion of the modalities for Commission access to highly sensitive intelligence materials, thereby influencing ongoing discussions of White House with Congress, etc. White House may therefore resolve other issues (like interviews of White House staff and the scope of

interview questioning) under the assumption that details will be made public by the Commission and set precedents for dealing with Congress. 2. Reject proposal — This would presumably mean issuing public statement saying that White House is denying us access we need to PDBs and issuance of a subpoena to CIA to produce these documents. Pro: Preserves our position of the need for direct access for all Commissioners. Puts additional public pressure on White House. Con: Would likely mean that we would get no access to any PDBs unless we won a difficult court case to enforce a subpoena against the likely claim of executive privilege/state secrets by the President. White House would contend that the Commission has been offered access to all the documents it sought. White House voluntary cooperation on all other matters - including interviews and access to other especially sensitive documents ~ also could be jeopardized.

DRAFT TEXT (Option 1) As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission and the White House have now agreed upon a process that will allow the Commission to examine all of the documents produced in response to our requests. We expect that these procedures will allow the Commission to obtain the information that it must have in order to prepare the report mandated by law. If those procedures fail to achieve that goal, the Commission retains the option of using whatever remedies are available under its statute. These are not easy issues. There are few, if any, precedents for the Commission's requests. These negotiations have concluded in a fashion that will allow the Commission to do its job with due regard for the sensitivity of the information contained in such intelligence documents. DRAFT TEXT (Option la) As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items

have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission asked that all commissioners be able to examine these documents. The White House position would limit direct access only to the Chair, Vice Chair, and two members of the staff, who would in turn have to report what they found to the rest of the Commission in summaries cleared by the White House. The Commission believes these procedures make it more difficult for all commissioners to play their part in the preparation of the report. Nevertheless, to avoid further delay in gaining access to the information, the Commission has accepted the White House proposal. We expect that these procedures will allow the Commission to obtain the information that it must have in order to prepare the report mandated by law. If those procedures fail to achieve that goal, the Commission retains the option of using whatever remedies are available under its statute. DRAFT TEXT (Option 2) As President Bush noted last week, the Commission has asked to examine a large number of intelligence items prepared for the President's Daily Brief in both the Clinton and Bush administration during the years before the 9/11 attack. Hundreds of such items have been identified in response to the Commission's request. The Commission received a briefing on this intelligence material, but we have also sought to examine these documents in order to have direct access to information we need to prepare our report. The Commission asked that all commissioners be able to examine these documents. The White House position would limit direct access to a subset of the requested PDBs only to the Chair, Vice Chair, and two members of the staff, who would in turn have to report what they found to the rest of the Commission in summaries cleared by the White House. Other requested PDBs would be available only to one representative of the Commission, who would not be able to take notes on relevant information unless the White House acceded to further requests to add such items to the subset set aside for the limited access described above. The Commission believes these conditions on access will not allow commissioners to be able to play their required part in the preparation of the report. Having failed to obtain through negotiations the adequate, effective access to the information we must have to fulfill our statutory mandate, the Commission has decided to issue a subpoena to the Central Intelligence Agency requiring the production of these documents for the Commission's review.